3792 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations

the noninsured crop disaster assistance

program (7 CFR part 1437) for the same

tree or vine loss, the eligible owner must

choose whether to receive the other

program benefits or payments under this

part. The eligible owner cannot receive

both. However, if the other program

benefits are not available until after the

eligible owner has received benefits

under this part, the eligible owner may

obtain the other program benefits if the

eligible owner refunds the total amount

of the payment received prior to

receiving the other program benefits. If

the eligible owner purchased additional

coverage insurance, as defined in 7 CFR

400.651, or is eligible for emergency

loans, the eligible owner will be eligible

for assistance under such program, and

this part as long as the amount received

for the loss under the additional

coverage or the emergency loan together

with the amount received from the other

programs does not exceed the amount of

the actual loss of the eligible owner.

Signed at Washington, D.C., on January 20,

1998.

Bruce R. Weber,

Acting Administrator, Farm Service Agency

and Acting Executive Vice President,

Commodity Credit Corporation.

[FR Doc. 98–1916 Filed 1–26–98; 8:45 am]

BILLING CODE 3410–05–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 207, 208, and 299

[INS No. 1639–93]

RIN 1115–AD59

Procedures for Filing a Derivative

Petition (Form I–730) for a Spouse and

Unmarried Children of a Refugee/

Asylee

AGENCY: Immigaration and

Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This final rule amends the

Immigration and Naturalization Service

(Service) regulations by providing

specific guidelines on the procedures

which must be followed by a refugee or

asylee to bring his/her spouse and

unmarried, minor child(ren)

(derivatives) into the United States. This

rule responds to the family reunification

needs of refugees by establishing an

equitable and consistent derivative

policy for refugees which parallels the

current derivative procedures for

asylees. This rule also amends asylum

regulations by removing from the

definition of qualifying relationship

child(ren) born to, or legally adopted by,

the principal alien and spouse after

approval of the principal alien’s asylum

application.

DATES: This rule is effective February

26, 1998.

FOR FURTHER INFORMATION CONTACT:

Suzy Nguyen or Ramonia Law-Hill,

Senior Adjudications Officer,

Adjudications Division, Immigration

and Naturalization Service, 425 I Street,

NW., Room 3214, Washington, DC

20536, telephone (202) 514–5014.

SUPPLEMENTARY INFORMATION: On July 9,

1996, the Service published a proposed

rule in the Federal Register at 61 FR

35984, providing procedures that must

be followed by a refugee or asylee to

bring his or her spouse and unmarried,

minor child(ren) (derivatives) into the

United States.

The proposed rule was designed to

respond more fully to the family

reunification needs of refugees, while

establishing specific guidelines on the

derivative policy for both refugees and

asylees. First, the proposed rule allowed

the Service to use the refugee’s date of

admission into the United States to

determine accompanying or followingto-join eligibility for his/her spouse and

unmarried, minor child(ren). A refugee

would be able to file a Form I–730,

Refugee/Asylee Relative Petition, for

his/her spouse and/or each individual

child if the relationship predates the

refugee’s date of admission to the

United States, rather than the date of

interview or tentative approval date of

the application. This eligibility would

extend to a child who is in utero on the

date of the refugee’s admission to the

United States but is born after the

refugee’s admission as a refugee.

Second, the proposed rule imposed a

1-year time limit from the date of the

principal refugee’s admission to the

United States within which he or she

must file a Form I–730 for his/her

spouse and/or each individual child,

unless the Service determined that the

filing period should be extended for

humanitarian reasons. Similarly, the

principal asylee would be required to

file a Form I–730 for each qualifying

family member within 1 year of the date

on which he or she was granted asylum

status, unless the Service determines

that the filing period should be

extended for humanitarian reasons.

Third, the proposed rule required that

only an alien who was admitted to the

United States as a principal refugee

would be eligible to file the Form I–730

for accompanying or following-to-join

benefits for his/her spouse and/or

unmarried, minor child(ren). Those

individuals who derived their refugee

status from the principal refugee would

not be eligible to file a Form I–730.

Fourth, the proposed rule would

amend the asylum regulations by

requiring that, for purposes of filing a

Form I–730, the asylee’s relationship to

a child must have existed at the time of

approval of the asylum application.

Finally, the proposed rule added

certain documentary and evidentiary

requirements for filing a Form I–730,

such as requiring that a separate Form

I–730 be filed for each individual

qualifying family member and that a

photograph of the derivative be

included. These proposed regulations

served to clarify the Service’s

accompanying and following-to-join

policy for Service officers and the

general public by standardizing refugee

and asylee derivative procedures.

The Immigration and Naturalization

Service allowed a 60-day public

comment period which ended on

September 9, 1996. The Service received

19 comments on the proposed rule. The

following is a discussion of those

comments and the Service’s response.

Discussion of Comments

Using the Principal Refugee’s Date of

Admission To Determine Derivative

Eligibility

The Service proposed that the

principal refugee’s date of admission

into the United States be used to

determine accompanying or followingto-join eligibility for his/her derivatives.

Current regulations require that the

refugee’s relationship to the spouse or

child exist prior to the tentative

approval date of the principal’s

application for refugee status.

Furthermore, according to the proposed

rule, if the refugee proves that he/she is

the parent of a child who was born after

the refugee’s admission to the United

States, but who was in utero on the date

of refugee’s admission as a refugee, the

child shall be eligible to accompany or

follow-to-join the refugee.

Fourteen commenters praised and

supported the Service’s decision to use

the principal refugee’s date of admission

rather than date of tentative approval. In

addition, three commenters supported

the Service’s proposed rule pertaining to

children in utero. Only one commenter

was in opposition, claiming that the

change would invite exploitation and

fraud.

The Service has carefully considered

the one commenter’s concern regarding

the possibility of fraud. The Service

feels that the proposed rule contains

certain evidentiary and documentary

requirements (such as requiring a recent

photograph of the spouse or child and
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3793

requiring evidence of the claimed

relationship as set forth in 8 CFR part

204) which may reduce the risk of fraud

and exploitation. Furthermore, the

current interpretation of derivative

eligibility for refugees has created

confusion for Service officers, attorneys

and representatives, refugees, and the

general public. The Service believes that

this rule will alleviate inconsistencies in

determining eligibility that has been

encountered due to the difficulty in

determining the date of tentative

approval of the principal refugee’s

application. In addition, the current

interpretation is too restrictive because

it requires a refugee to meet a heavier

burden for establishing a relationship

with his/her spouse and/or child(ren)

than is required by regulation for a

citizen or lawful permanent resident of

the United States. Moreover, the Service

believes that this rule reflects the intent

of Congress by enhancing family

reunification for refugees.

One Year Filing Requirement

The proposed rule required that a

separate Form I–730 must be filed for

each qualifying derivative within 1 year

of the principal refugee’s admission to

the United States, unless the Service

determines that the filing period should

be extended for humanitarian reasons.

Similarly, the proposed rule required

that a separate Form I–730 for each

qualifying derivative must be filed

within 1 year of the date on which the

principal asylee was granted asylum

status, unless the Service determines

that the filing period should be

extended for humanitarian reasons.

Twelve commenters opposed the 1-

year time limit. Ten of those claimed

that 1 year is too short or unrealistic.

Two commenters suggested a minimum

of 3 years, and one suggested that a

more reasonable time limit would be

when the refugee/asylee becomes

eligible for U.S. Citizenship. Seven

commenters argued that there is no time

restriction imposed in the Immigration

and Nationality Act (‘‘the Act’’) and

that, therefore, the Service should not

set a time limit. Others noted that, since

this is a newly imposed time limit, the

Service should ensure that refugees and

asylees are well informed of this filing

requirement. Only one commenter

agreed that the 1-year time limit was

reasonable.

Derivative benefits for refugees and

asylees are intended to expediently

reunite families in order for them to

make the difficult transition to a new

life with the support of their immediate

family members by avoiding lengthy

delays due to visa quotas. The timely

filing of Form I–730 will expedite the

reunification of refugee families. At the

moment, Service regulations on

derivative benefits for refugee and

asylees contain no time limitation. As a

result, there are individuals who had

entered the United States in the late

1970s or early 1980s as refugees who

did not file Form I–730 petitions for

their derivatives until ten or more years

after their admission. Such filings no

longer serve the purpose for which they

were originally intended and, instead,

only serve to deplete limited refugee

admission numbers and refugee

resettlement monies needed for

currently emerging refugee populations.

In determining the filing time limitation

for Form I–730, the Service

acknowledges that it must be responsive

to the needs of the applicant base.

After careful consideration of the

comments received, the Service is

modifying the proposed rule with regard

to the 1-year time limit. Accordingly,

the final rule requires that the Form I–

730 must be filed within 2 years of the

date of admission to the United States

for a refugee, or within 2 years of the

grant of asylum for an asylee. Although

the Service believes that 1 year is a

reasonable time limit for refugees and

asylees to file the Form I–730, the

Service would like to acknowledge and

address the commenters’ concerns by

adopting this change. Therefore, the

filing of the Form I–730 within 2 years

of admission as a refugee or grant of

asylum will serve to notify the Service

of a refugee’s or asylee’s intent to have

his/her derivative(s) join him/her in the

United States. The Service has also

carefully reviewed the provisions of

section 207(c)(2) of the Act and has

determined that the establishment of a

filing period does not violate the

language or intent of that section of the

Act.

Five commenters argued that, since

the proposed rule did not define which

‘‘humanitarian reasons’’ warranted an

extension of the filing deadline, this

would lead to arbitrary and conflicting

decisions by Service officers, or create a

large category of applicants under this

exception. On the contrary, the Service

believes that defining the specific

qualifying ‘‘humanitarian reasons’’

would only act to restrict severely the

category and shut the door on

applicants who need this exception

most. As with other immigration

benefits, applications should be decided

on a case-by-case basis. Likewise,

although humanitarian exceptions are

used throughout other Service

regulations, the term is not defined so

that individuals with exceptional cases

are not shut out. The Service will make

continual assessments of the processing

of the I–730 petitions, particularly in the

early stages of the promulgation of this

rule, and provide guidance to Service

officers, if necessary, in order to ensure

uniformity in the decision process.

Ten commenters noted that the

Service should have some type of

grandfather clause to allow petitioners

whose Forms I–730 were denied under

the old regulations to refile or reopen

their cases. Five commenters pointed

out that, although the introductory

comment to the proposed rule had

indicated that refugees and asylees in

the United States for more than 1 year

when the regulation becomes effective

would be given 1 year to file, this

provision was not put in the proposed

regulation itself. Furthermore, the

proposed rule failed to address refugees

and asylees who have been in the

United States for less than 1 year at the

time the regulation becomes effective.

The Service agrees with the

commenters who expressed the need for

some type of grandfather clause. The

Service is also grateful to those

commenters who spotted the

inadvertent omission. In response to

these comments, the Service is

including a grandfather clause in the

final rule which allows all persons

admitted as refugees or granted asylum

prior to the effective date of the final

rule to file the Form I–730 within 2

years of that effective date regardless of

when they were admitted as a refugee or

granted asylum. This will allow refugees

and asylees an equal opportunity to

apply for derivative benefits for their

spouse and/or child(ren). A principal

refugee who had previously submitted

the Form I–730 but was denied because

of current regulations requiring the

relationship with his/her derivative(s) to

have existed prior to the tentative

approval date of his/her application for

refugees status should reapply by

submitting Form I–730 for each

individual derivative within 2 years of

the effective date of the final rule. It is

noted that petitioners must reapply in

these situations since the Service will

not sua sponte reopen previously

denied files. In order to better inform

the general public, the Service is

including the grandfather clause in the

instructions part of the revised Form I–

730 to inform all potential refugee and

asylee petitioners that they have either

2 years from the date on which the final

rule becomes effective or 2 years after

the date of admission (for refugees) or

grant of asylum (for asylees), whichever

is later, to file the Form I–730.
3794 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations

Only the Principal Refugee May File a

Form I–730

Similar to current regulations, the

proposed rule required that the Form I–

730 be filed by the principal refugee.

Individuals who have derived their

refugee status from the principal refugee

are not eligible to file a Form I–730.

Ten commenters opposed the

Service’s requirement that only the

principal refugee may file the Form I–

730. Four commenters claimed that,

because of the refugee registration

systems used overseas, certain refugees

may be inadvertently labeled as a

derivative when he/she does not fit the

definition of a derivative spouse or

child and, in fact, should be considered

a principal for the purposes of filing the

Form I–730. Two commenters argued

that any refugee who does not meet the

statutory definition of a ‘‘derivative’’

should be allowed to file the Form I–

730. Several commenters stated that if

the purpose of the principal applicant

rule is to deter fraud, then it is

overbroad and, as such, violates the

intent and language of the Act. One

commenter expressed the need for a

humanitarian exception in the case

where the principal refugee is deceased

or incapacitated, becomes abusive, or

abandons his/her family after the

derivative spouse has reached the

United States, in order to allow the

derivative spouse to petition for their

mutual child(ren). Another commenter

stated that the regulation should allow

for the child of an unmarried parent to

accompany or follow-to-join him/her

even if the parent had obtained his/her

refugee status on a derivative basis.

The Service has carefully considered

their comments and has reviewed the

language of the Act at sections 207 (c)(1)

and (c)(2). The requirement that only

the principal refugee may file for

accompanying of following-to-join

benefits for his/her spouse and/or

child(ren) may be ascertained from the

language of sections 207 (c)(1) and (c)(2)

of the Act. Section 207(c)(2) provides for

the admission of spouses and children

(as defined in section 101(b)(1) (A), (B),

(C), (D), or (E) of the Act) of a refugee

qualifying for admission under section

207(c)(1) of the Act. Accordingly, only

a principal refugee, admitted under

section 207(c)(1) of the Act, may file a

Form I–730 on behalf of his or her

spouse or child(ren). The Service

already regards persons admitted under

section 207 who do not meet the

statutory definition of a spouse or child

to be principals for the purpose of filing

an I–730 petition.

Eight commenters stated that the

proposed rule was confusing in its use

of the terms ‘‘principal refugee,’’

‘‘principal applicant,’’ and ‘‘principal

alien.’’ The Service agrees with these

comments and has removed the term

‘‘principal applicant’’ from the final rule

in order to avoid any confusion.

Eligible and Ineligible Relatives of a

Refugee/Asylee

The Service listed in proposed

§ 207.7(b) relatives of refugees who are

ineligible for accompanying or

following-to-join benefits, which

included: a spouse or child who has

previously been granted asylee or

refugee status; an adopted child, if the

adoption took place after the child

became 16 years old, or if the child has

not been in the legal custody and living

with the parent(s) for at least 2 years; a

stepchild, if the marriage that created

this relationship took place after the

child became 18 years old; a husband or

wife if each/both were not physically

present at the marriage ceremony and

the marriage was not consummated, or

if the U.S. Attorney General has

determined that such alien has

attempted or conspired to enter into a

marriage for the purpose of evading

immigration laws; and a parent, sister,

brother, grandparent, grandchild,

nephew, niece, uncle, aunt, cousin or

in-law.

Six commenters put forth various

arguments for the inclusion of certain

relatives as eligible accompanying or

following-to-join derivatives of a refugee

or asylee. Four commenters stated that

some type of exclusion should be made

for a child of a derivative child. Two

commenters claimed that relatives listed

in proposed § 207.7(b)(6) (i.e., parent,

sibling, grandparent/child, nephew/

niece, uncle/aunt, cousin, and in-law)

should be included as derivative

refugees when they are dependent on

the principal refugee and reside in his/

her household. One commenter argued

that barring the mother of the principal

alien’s child because the principal was

not married to the child’s mother is

harsh and irrelevant. Another claimed

that eligible ‘‘accompanying derivative’’

should include relatives of the principal

petitioner’s spouse, or the principal

petitioner’s child. One commenter

pointed out that many children in

agrarian or less-developed societies are

customarily adopted without legal

formalities; therefore, people should be

allowed to present proof that they were

the actual custodial guardian of the

child for the requisite minimum of 2

years, to petition for the child as a

derivative refugee, and then complete

the legal adoption formalities in the

United States.

The Service has carefully considered

these comments. However, section

207(c)(2) of the Act clearly specifies that

only a ‘‘spouse or child (as defined in

section 101(b)(1) (A), (B), (C), (D), or

(E))’’ of a refugee shall be eligible for

accompanying or following-to-join

benefits. Accordingly, the Service has

deemed ineligible those relatives who

do not fit the statutory definition of a

spouse and child as defined in sections

101(a)(35) and 101(b)(1) (A), (B), (C),

(D), or (E), respectively, of the Act.

Evidentiary and Documentary

Requirements

The proposed rule required that a

separate Form I–730 must be filed for

each qualifying family member, which

must also include a recent photograph

of this family member. The petitioning

refugee or asylee has the burden to

establish by a preponderance of the

evidence that the person for whom he/

she is petitioning is an eligible spouse

or child. The evidence to establish the

claimed relationship for a spouse or

unmarried, minor child as set forth in 8

CFR part 204 must be submitted with

the Form I–730; where possible, this

will consist of the documents specified

in § 204.2(a)(1)(i)(B), (a)(1)(iii)(B), (a)(2),

(d)(2), and (d)(5). No fee is charged for

filing a Form I–730 petition.

Three commenters opposed the

proposed requirement that a separate

Form I–730 must be filed for each

family member. Four commenters

claimed that the photograph

requirement is too restrictive and

unrealistic. Six commenters argued that

the heightened evidence needed to

prove spousal relationship should only

apply in situations where Congress has

expressed the fear of marriage fraud,

which would not include refugees cases.

In addition, five commenters stated that

the ‘‘where possible’’ language of the

proposed rule is vague and, therefore,

may result in arbitrary decisions by

Service officers.

The Service has carefully considered

the comments. However, the Service

believes that the evidentiary and

documentary requirements are

reasonable. First, having a separate

Form I–730 for each family member will

enhance efficiency and facilitate Service

processing of the petition, especially in

cases where there are many derivatives

and/or they are residing in different

geographic locations. Since each

derivative has a separate I–730, each

petition may be processed on its own

without having to wait for the rest of the

family members. Second, the

photograph required of each derivative

need not meet Alien Documentation

Identification and Telecommunication
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3795

System (ADIT) specifications. The

Service believes that it is not overly

burdensome to require a non-ADIT

photograph. Third, the Service believes

that adopting the standard of evidence

set forth in 8 CFR part 204 to establish

a claimed relationship for a spouse or

minor, unmarried child is a reasonable

requirement in light of the risk of

fraudulent petitions.

Finally, petitioners should note that

although there is no appeal from the

denial of a petition filed on Form I–730,

the denial shall be without prejudice to

the consideration of a new petition or

motion to reopen the refugee or asylee

relative petition proceeding, if the

petitioner establishes eligibility for

accompanying or following-to-join

benefits. This is consistent with other

types of applications for immigration

benefits where no administrative appeal

is available, but the applicant may

submit a new application or a motion to

reopen in the case of a denial (e.g., 8

CFR 204.2(a)(1)(iii)(D)).

Regulatory Flexibility Act

The Commissioner of the Immigration

and Naturalization Service, in

accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by

approving it, certifies that this rule will

not have a significant economic impact

on a substantial number of small

entities. This rule is administrative in

nature and merely imposes specific

regulatory restraints, which parallel

procedures currently found in asylum

regulations. This rule will not result in

an annual effect on the economy of $100

million or more or adversely and

materially affect a sector of the

economy, or cause major increases in

costs or prices for consumers, or have

other adverse effects on the economy in

terms of productivity, competition jobs,

the environment, public health, or

safety. Furthermore, the affected parties

are not small entities, and the impact of

the regulation is not an economic one.

Executive Order 12866

This rule is considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review.

Accordingly, this regulation has been

submitted to and, approved by, the

Office of Management and Budget.

Executive Order 12612

The regulations proposed herein will

not have substantial direct effects on the

States, on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988 Civil Justice

Reform

This rule meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of E.O. 12988.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any 1 year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement

Fairness Act of 1996. This rule will not

result in an annual effect on the

economy of $100 million or more; a

major increase in costs or prices; or

significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Form I–730

The revised Form I–730 has been

included at the end of this final rule to

allow the public to duplicate the form

from the Federal Register until the form

is printed and distributed worldwide.

Paperwork Reduction Act

The information collection

requirement (Form I–730) contained in

this rule has been submitted to and

approved by the Office of Management

and Budget under the provisions of the

Paperwork Reduction Act. The

clearance number for this collection is

contained in 8 CFR 299.5

List of Subjects

8 CFR Part 207

Immigration, Refugees, Reporting and

recordkeeping requirements.

8 CFR Part 208

Administrative practice and

procedure, Aliens, Immigration,

Reporting and recordkeeping

requirements.

8 CFR Part 299

Immigration, Reporting and

recordkeeping requirements.

Accordingly, chapter I of title 8 of the

Code of Federal Regulations is amended

as follows:

PART 207—ADMISSION OF

REFUGEES

1. The authority citation for part 207

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1157,

1159, 1182, 8 CFR part 2.

§§ 207.7 and 207.8 [Redesignated as

§ 207.8 and § 207.9]

2. Sections 207.7 and 207.8 are

redesignated as § 207.8 and § 207.9

respectively.

3. A new § 207.7 is added to read as

follows:

§ 207.7 Derivatives of refugees.

(a) Eligibility. A spouse, as defined in

section 101(a)(35) of the Act, and/or

child(ren), as defined in section

101(b)(1)(A), (B), (C), (D), or (E) of the

Act, shall be granted refugee status if

accompanying or following-to-join the

principal alien. An accompanying

derivative is a spouse or child of a

refugee who is in the physical company

of the principal refugee when he or she

is admitted to the United States, or a

spouse or child of a refugee who is

admitted within 4 months following the

principal refugee’s admission. A

following-to-join derivative, on the

other hand, is a spouse or child of a

refugee who seeks admission more than

4 months after the principal refugee’s

admission to the United States.

(b) Ineligibility. The following

relatives of refugees are ineligible for

accompanying or following-to-join

benefits:

(1) A spouse or child who has

previously been granted asylee or

refugee status;

(2) An adopted child, if the adoption

took place after the child became 16

years old, or if the child has not been

in the legal custody and living with the

parent(s) for at least 2 years;

(3) A stepchild, if the marriage that

created this relationship took place after

the child became 18 years old;

(4) A husband or wife if each/both

were not physically present at the

marriage ceremony, and the marriage

was not consummated (section

101(a)(35) of the Act);
3796 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations

(5) A husband or wife if the U.S.

Attorney General has determined that

such alien has attempted or conspired to

enter into a marriage for the purpose of

evading immigration laws; and

(6) A parent, sister, brother,

grandparent, grandchild, nephew, niece,

uncle, aunt, cousin or in-law.

(c) Relationship. The relationship of a

spouse and child as defined in sections

101(a)(35) and 101(b) (1)(A), (B), (C),

(D), or (E), respectively, of the Act, must

have existed prior to the refugee’s

admission to the United States and must

continue to exist at the time of filing for

accompanying or following-to-join

benefits and at the time of the spouse or

child’s subsequent admission to the

United States. If the refugee proves that

the refugee is the parent of a child who

was born after the refugee’s admission

as a refugee, but who was in utero on

the date of the refugee’s admission as a

refugee, the child shall be eligible to

accompany or follow-to-join the refugee.

The child’s mother, if not the principal

refugee, shall not be eligible to

accompany or follow-to-join the

principal refugee unless the child’s

mother was the principal refugee’s

spouse on the date of the principal

refugee’s admission as a refugee.

(d) Filing. A refugee may request

accompanying or following-to-join

benefits for his/her spouse and

unmarried, minor child(ren) (whether

the spouse and children are in or

outside the United States) by filing a

separate Form I–730 Refugee/Asylee

Relative Petition, for each qualifying

family member with the designated

Service office. The Form I–730 may only

be filed by the principal refugee. Family

members who derived their refugee

status are not eligible to file the Form

I–730 on behalf of their spouse and

child(ren). A separate Form I–730 must

be filed for each qualifying family

member before February 28, 2000 or

within 2 years of the refugee’s

admission to the United States,

whichever is later, unless the Service

determines that the filing period should

be extended for humanitarian reasons.

There is no time limit imposed on a

family member’s travel to the United

States once the Form I–730 has been

approved, provided that the relationship

of spouse or child continues to exist and

approval of the Form I–730 petition has

not been subsequently revoked. There is

no fee for filing this petition.

(e) Evidence. Documentary evidence

consists of those documents which

establish that the petitioner is a refugee,

and evidence of the claimed

relationship of the petitioner to the

beneficiary. The burden of proof is on

the petitioner to establish by a

preponderance of the evidence that any

person on whose behalf he/she is

making a request under this section is

an eligible spouse or unmarried, minor

child. Evidence to establish the claimed

relationship for a spouse or unmarried,

minor child as set forth in 8 CFR part

204 must be submitted with the request

for accompanying or following-to-join

benefits. Where possible this will

consist of the documents specified in

§ 204.2(a (1)(i)(B), (a)(1)(iii)(B), (a)(2),

(d)(2), and (d)(5) of this chapter. In

addition, a recent photograph of each

derivative must accompany the Form I–

730. The photograph must clearly

identify the derivative, and will be

made part of the derivative’s

immigration record for identification

purposes.

(f) Approvals. (1) Spouse or child in

the United States. When a spouse or

child of a refugee is in the United States

and the Form I–730 is approved, the

Service will notify the refugee of such

approval on Form I–797, Notice of

Action. Employment will be authorized

incident to status.

(2) Spouse or child outside the United

States. When a spouse or child of a

refugee is outside the United States and

the Form I–730 is approved, the Service

will notify the refugee of such approval

on Form I–797. The approved Form I–

730 will be sent by the Service to the

Department of State for forwarding to

the American Embassy or Consulate

having jurisdiction over the area in

which the refugee’s spouse or child is

located.

(3) Benefits. The approval of the Form

I–730 shall remain valid for the duration

of the relationship to the refugee and, in

the case of a child, while the child is

under 21 years of age and unmarried,

provided also that the principal’s status

has not been revoked. However, the

approved Form I–730 will cease to

confer immigration benefits after it has

been used by the beneficiary for

admission to the United States as a

derivative of a refugee. To demonstrate

employment authorization, the Service

will issue a Form I–94, ArrivalDeparture Record, which also reflects

the derivative’s current status as a

refugee, or the derivative may apply

under § 274a.12(a) of this chapter, using

Form I–765, Application for

Employment Authorization, and a copy

of the Form I–797.

(g) Denials. If the spouse or child of

a refugee is found to be ineligible for

derivative status, a written notice

explaining the basis for denial shall be

forwarded to the principal refugee.

There shall be no appeal from this

decision. However, the denial shall be

without prejudice to the consideration

of a new petition or motion to reopen

the refugee or asylee relative petition

proceeding, if the refugee establishes

eligibility for the accompanying or

following-to-join benefits contained in

this part.

PART 208—PROCEDURES FOR

ASYLUM AND WITHHOLDING OF

REMOVAL

4. The authority citation for part 208

continues to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252,

1282; 8 CFR part 2.

5. In § 208.19, paragraphs (b), (c), (d),

and (f) are revised to read as follows:

§ 208.19 Admission of asylee’s spouse

and children.

* * * * *

(b) Relationship. The relationship of

spouse and child as defined in sections

101(a)(35) and 101(b)(1) of the Act must

have existed at the time the principal

alien’s asylum application was

approved and must continue to exist at

the time of filing for accompanying or

following-to-join benefits and at the

time of the spouse or child’s subsequent

admission to the United States. If the

asylee proves that the asylee is the

parent of a child who was born after

asylum was granted, but who was in

utero on the date of the asylum grant,

the child shall be eligible to accompany

or follow-to-join the asylee. The child’s

mother, if not the principal asylee, shall

not be eligible to accompany or followto-join the principal asylee unless the

child’s mother was the principal

asylee’s spouse on the date the principal

asylee was granted asylum.

(c) Spouse or child in the United

States. When a spouse or child of an

alien granted asylum is in the United

States, but was not included in the

asylee’s application, the asylee may

request accompanying or following-tojoin benefits for his/her spouse or child

by filing for each qualifying family

member a separate Form I–730, Refugee/

Asylee Relative Petition, and supporting

evidence, with the designated Service

office, regardless of the status of that

spouse or child in the United States. A

recent photograph of each derivative

must accompany the Form I–730. The

photograph must clearly identify the

derivative, and will be made part of the

derivative’s immigration record for

identification purposes. Additionally, a

separate Form I–730 must be filed by

the asylee for each qualifying family

member before February 28, 2000, or

within 2 years of the date in which he/

she was granted asylum status,

whichever is later, unless it is

determined by the Service that this
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3797

period should be extended for

humanitarian reasons. Upon approval of

the Form I–730, the Service will notify

the asylee of such approval on Form I–

797, Notice of Action. Employment will

be authorized incident to status. To

demonstrate employment authorization,

the Service will issue a Form I–94,

Arrival-Departure Record, which also

reflects the derivative’s current status as

an asylee, or the derivative may apply

under § 274a.12(a) of this chapter, using

Form I–765, Application for

Employment Authorization, and a copy

of the Form I–797. The approval of the

Form I–730 shall remain valid for the

duration of the relationship to the asylee

and, in the case of a child, while the

child is under 21 years of age and

unmarried, provided also that the

principal’s status has not been revoked.

However, the approved Form I–730 will

cease to confer immigration benefits

after it has been used by the beneficiary

for admission to the United States as a

derivative of an asylee.

(d) Spouse or child outside the United

States. When a spouse or child of an

alien granted asylum is outside the

United States, the asylee may request

accompanying or following-to-join

benefits for his/her spouse or child(ren)

by filing a separate Form I–730 for each

qualifying family member with the

designated Service office, setting forth

the full name, relationship, date and

place of birth, and current location of

each such person. A recent photograph

of each derivative must accompany the

Form I–730. The photograph must

clearly identify the derivative, and will

be made part of the derivative’s

immigration record for identification

purposes. A separate Form I–730 for

each qualifying family member must be

filed before February 28, 2000, or within

2 years of the date in which the asylee

was granted asylum status, whichever is

later, unless the Service determines that

the filing period should be extended for

humanitarian reasons. When the Form

I–730 is approved, the Service will

notify the asylee of such approval on

Form I–797. The approved Form I–730

shall be forwarded by the Service to the

Department of State for delivery to the

American Embassy or Consulate having

jurisdiction over the area in which the

asylee’s spouse or child is located. The

approval of the Form I–730 shall remain

valid for the duration of the relationship

to the asylee and, in the case of a child,

while the child is under 21 years of age

and unmarried, provided also that the

principal’s status has not been revoked.

However, the approved Form I–730 will

cease to confer immigration benefits

after it has been used by the beneficiary

for admission to the United States as a

derivative of an asylee.

* * * * *

(f) Burden of proof. To establish the

claimed relationship of spouse or child

as defined in sections 101(a)(35) and

101(b)(1) of the Act, evidence must be

submitted with the request as set forth

in part 204 of this chapter. Where

possible this will consist of the

documents specified in § 204.2

(a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2),

and (d)(5) of this chapter. The burden of

proof is on the principal alien to

establish by a preponderance of the

evidence that any person on whose

behalf he or she is making a request

under this section is an eligible spouse

or child.

* * * * *

PART 299—IMMIGRATION FORMS

6. The authority citation for part 299

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part

2.

7. Section 299.1 is amended by

revising the entry for Form ‘‘I–730’’ to

read as follows:

§ 299.1 Prescribed forms.

* * * * *

Form No. Edition date Title

* * * * * * *

I–730 .............................................................................................................. 01–07–98 Refugee/Asylee Relative Petition.

* * * * * * *

8. Section 299.5 is amended by revising the entry for Form ‘‘I–730’’ to read as follows:

§ 299.5 Display of control numbers.

* * * * *

INS form No. INS form title Currently assigned

OMB control No.

* * * * * * *

I–730 .......................................................................................................... Refugee/Asylee Relative Petition .................... 1115–0121

* * * * * * *

Dated: July 30, 1997.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

Note: The Form I–730, Refugee/Asylee

Relative Petition, will not appear in the Code

of Federal Regulations.

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3800 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3801
3802 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations
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[FR Doc. 98–1879 Filed 1–26–98; 8:45 am]

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